The Little River Drainage District v. Tomlinson

• Decision Date: 02 July 1912
• Citation: 149 S.W. 454,245 Mo. 1
• Parties: THE LITTLE RIVER DRAINAGE DISTRICT, J. H. HIMMELBERGER et al., Appellants, v. T. E. TOMLINSON et al
• Court: Missouri Supreme Court

149 S.W. 454

245 Mo. 1

THE LITTLE RIVER DRAINAGE DISTRICT, J. H. HIMMELBERGER et al., Appellants, v. T. E. TOMLINSON et al

Supreme Court of Missouri

July 2, 1912

Appeal from Butler Circuit Court. -- Hon. J. C. Sheppard, Judge.

Reversed and remanded.

Oliver & Oliver for appellants.

(1) The General Assembly of this State has the inherent right to incorporate drainage districts directly. It also has the power to delegate to the circuit courts of this State, as its agent, the right to incorporate such districts. It has the right to designate what particular courts in the State should be possessed with the power and jurisdiction of incorporating drainage districts, and how long such courts should retain jurisdiction over the corporations thus created. St Louis v. Russell, 9 Mo. 507; St. Louis v Allen, 13 Mo. 400; Giboney v. Cape Girardeau, 58 Mo. 141; Kelley v. Meeks, 87 Mo. 396; Levee Co. v. Harden, 27 Mo. 495; Columbia Bottom Co. v Meier, 39 Mo. 53; Morrison v. Morey, 146 Mo. 561; Land & Stock Co. v. Miller, 170 Mo. 240; Pryor v. Construction Co., 170 Mo. 451; Laws 1859, p. 60; Laws 1879, p. 132; Sec. 5496, R. S. 1909; Laws 1905, p. 190; Drainage District v. Railroad, 139 S.W. 330; Ross v. Board, 1 L. R. A. (N. S.) 431; Hagar v. District, 66 Cal. 54; Hagar v. District, 111 U.S. 701. (2) The statute provides that the owners of a majority of acreage in any contiguous body of swampy or over-flowed lands in this State, situated in one or more counties, may form a drainage district for the purpose of having such lands drained and reclaimed and protected from the effects of water, by making and signing articles of association, and filing them in the office of the clerk of the circuit court in the county in which there are situated more of the lands of said district than in any other county. R. S. 1909, Sec. 5496; Land Co. v. Miller, 170 Mo. 240; Drainage District v. Railroad, 139 S.W. 330. (3) The statute further provides that the circuit court in which the petition and articles of association are filed shall thereafter maintain and have exclusive jurisdiction of said drainage district, without regard to county lines, for all the purposes arising under Art. 1, Ch. 41, of said statute. This requirement of the statute is reasonable and just, as it prevents the splitting up into many fragments that which ought to be kept of necessity as a unit. Its constitutionality and wisdom have been approved in other forums. R. S. 1909, Sec. 5497; District v. Richardson, 139 S.W. 581; Shaw v. Whitmore, 97 Ind. 23; Crites v. State, 97 Ind. 389; Reclamation District v. Hagar, 66 Cal. 54; Meranda v. Spurlin, 100 Ind. 380; Hudson v. Bunch, 116 Ind. 63; Buchanan v. Roeder, 97 Ind. 605; Hagar v. District, 111 U.S. 701; Dredge Works v. Board, 85 N.E. 1. (4) The original petition and articles of association of the Little River Drainage District were first filed in 1905 in the office of the clerk of the circuit court of New Madrid county because that county had in it more lands in the district than did any other county. But later the venue was changed from the circuit court of New Madrid county to the Butler Circuit Court. The Butler Circuit Court therefore became possessed of the same jurisdiction and all of the jurisdiction and power that was originally vested in the New Madrid Circuit Court, "leaving not a shred or patch of jurisdiction over the cause or any of its incidents" in the New Madrid Circuit Court. So that on Nov. 30, 1907, when the circuit court of Butler county, adjudged and decreed the Little River Drainage District to be a public corporation of this State, that court was possessed of exactly the same jurisdiction that was originally conferred by the statute upon the New Madrid Circuit Court. R. S. 1909, Secs. 1935 and 5497; Drainage District v. Richardson, 139 S.W. 576; Ex parte Haley, 99 Mo. 152; State ex rel. v. Riley, 203 Mo. 175; Dredge Works v. Board, 85 N.E. 1. (5) The statute, in 1910, provided that any drainage district organized under the provisions of Art. 1, Ch. 41, could enlarge its boundaries so as to include other lands that were wet and swampy if contiguous to the drainage district. It provided that the board of supervisors of the district may present a petition to the circuit court, praying that the boundaries of the district be extended so as to include the outlying lands, particularly describing such lands and giving the names of the owners thereof. R. S. 1909, Sec. 5500. It will be observed that this section does not in direct terms designate in what "circuit court" the petition for the enlargement of the boundaries of the district shall be filed. But the whole context and spirit of the statute clearly and unmistakably points to the "circuit court" that organized and fixed the boundaries of the district, as the court in which the petition must be filed. A careful examination and study of the entire drainage statute will convince any unbiased mind that the Legislature intended that only one court should have jurisdiction of all questions and proceedings affecting the organization, including the enlargement of the boundaries, management and control of the district -- no matter how many counties, nor how many judicial circuits may have lands within the drainage district thus organized. Sec. 5497 not only so declares in the most positive and direct language, but the context of the whole statute is equally clear and positive in declaring the legislative purpose. R. S. 1909, Secs. 5497, 5499, 5506, 5514, 5515, 5516, 5517 and 5518; Drainage District v. Richardson, 139 S.W. 581.

H. C. O'Bryan and Robert A. Anthony for respondents.

(1) The decree rendered by the circuit court of Butler county incorporating Little River Drainage District and fixing its boundaries, was a final judgment, rendered in a civil cause and from which an appeal to the Supreme Court would lie. State ex rel. v. Riley, 203 Mo. 175; Land & Stock Co. v. Miller, 170 Mo. 240; Drainage District v. Railroad, 139 S.W. 330. (2) The said decree of incorporation being a final judgment and answering fully the prayer of the petition and authority granted by the statute the power and authority vested in the circuit court of Butler county by virtue of the change of venue from New Madrid county, became exhausted, and it possessed no jurisdiction over causes arising after the incorporation of said district. R. S. 1909, Art. 1, Ch. 41. (3) This proceeding to enlarge and extend the boundaries of Little River Drainage District is not ancillary to the action brought to incorporate the district, nor is it designed to effectuate or change the incorporating decree, therefore the action was improperly brought in the Butler Circuit Court. Cole v. Cole, 89 Mo.App. 228; Oglesby v. Antull, 12 F. 227. (4) After a change of venue it is true that a pleading may be amended, new parties may be brought in, a supplemental petition may be filed and new summons may issue, but the subject matter of the action must remain the same or the court to which the cause has been removed will have no jurisdiction. R. S. 1909, Sec. 1933; Fears v. Riley, 148 Mo. 49. (5) The institution of this action to enlarge and extend Little River Drainage District as originally incorporated, and to take in lands not embraced in the original corporate limits, cannot be considered as an amendment of the "articles of association," nor a move to add new parties to the action brought to incorporate, nor a supplemental petition to such action. The subject matters of the two actions are radically different; not a particle of the land described in the action to enlarge was embraced in the original petition or articles of association brought for the purpose of incorporating the district. The parties to the two actions are entirely different. In the action brought to incorporate there were certain petitioners and landowners of the proposed district against all other landowners of such proposed district who refused to join with the petitioners. In the action now before the court brought to enlarge and extend the boundaries of the district, the corporate entity, Little River Drainage District, incorporated since the institution of the original action, is the plaintiff, and the owners of lands lying adjoining and outside the boundaries of said district whose rights so far as said lands are concerned are for the first time brought in question, are the defendants. (6) By the general law, if this be regarded as a personal action, defendant Tomlinson was entitled to be sued in the county of his residence, or the county of the residence of the plaintiff. Neither resided in Butler county. R. S. 1909, Sec. 1751. (7) If this action is to be considered as one which may ultimately affect the title to Tomlinson's real estate, then it should be brought in the county within which such real estate is situated. R. S. 1909, Sec. 1753. (8) It must be conceded that an action brought under Art. 1, Ch. 41, to incorporate a drainage district, is a distinct civil suit and from a decree rendered in such an action an appeal will lie. Therefore, the judgment and decree rendered is final as to that action. So a decree and judgment confirming the report of commissioners appointed under the provisions of Sec. 5518 is final. Under that section and by decree of the court benefits may be fixed, damages assessed and land and other property condemned for the purposes of the district. The effect of such decree is to impose special burdens upon individuals and corporations owning property within the district, hence the right of appeal from a judgment and decree confirming the report of commissioners exists under the general law whether given or not by Art. 1, Ch. 41. The appeal lies because burdens are imposed upon the property of citizens. Appeals have been allowed from...